The opinion
Tom Glaze, Judge, dissenting. I dissented in Henson v. Money, 1 Ark. App. 97 , 613 S.W.2d 123 , aff’d, 273 Ark. 203 , 617 S.W.2d 367 (1981), and for similar reasons, I do so here. In my opinion, Henson was a deplorable decision, and the decision reached in the instant case is no better.
The threshhold issue is whether the appellant’s consent to adoption was required under Ark. Stat. Ann. § 56-207 (a) (2) (Supp. 1983). That statutory provision dispenses with the non-custodial parent’s consent if he or she fails significantly without justifiable cause for a one-year period to communicate with or to support his or her child as required by law or judicial decree. Before today, our appellate courts have construed § 56-207 (a) (2) in seven published opinions. In three cases, the courts affirmed the trial court’s finding that the non-custodial parent justifiably withheld his or her support/contact with the child. See Loveless v. May, 278 Ark. 127 , 644 S.W.2d 261 (1983); Harper v. Caskin, 265 Ark. 558 , 580 S.W.2d 176 (1979); and Chrisos v. Egleston, 7 Ark. App. 82 , 644 S.W.2d 326 (1983). In the other four cases, the courts held the non-custodial parents’ consents were not required because they had failed without justifiable cause to support or communicate with their children. See Henson v. Money, supra; Pender v. McKee, 266 Ark. 18 , 582 S.W.2d 929 (1979); Watkins v. Dudgeon, 270 Ark. 516 , 606 S.W.2d 78 (Ark. App. 1980); and Brown v. Fleming, 266 Ark. 814 , 586 S.W.2d 8 (Ark. App. 1979). The Supreme Court cases of Harper and Pender are controlling when considering whether a non-custodial parent’s consent is necessary under § 56-207 (a) (2). Unfortunately, these two decisions tend to lead us in opposite directions. In Harper, the court construed § 56-207 (a) (2) for the first time and held that one wishing to adopt a child without a parent’s consent must show by clear and convincing evidence that the parent has failed without justifiable cause to support or communicate with his or her child. Justice Fogleman wrote in a concurring opinion in Harper that the clear and convincing burden adopted by the majority was incorrect; he opined a preponderance of the evidence was the correct standard. The Harper court refused to dispense with the father’s consent even though he had paid only $100 child support during a one-year period. Although the father had epilepsy and was unemployed, he was a veteran and his child was entitled to V.A. benefits, which he did not provide because the mother said that she was not interested in receiving such benefits. Because the mother prevented him from doing so, the father also had not visited with his child for nearly three years. He made no effort to petition to court to gain access to his child. Nonetheless, the court in Harper imposed a heavy burden on the mother to prove the father’s failure to support or communicate was without justification and affirmed the lower court’s finding that she did not meet that burden.
Two months after Harper, Justice Fogleman authored Pender v. McKee. The Supreme Court affirmed the lower court, but this time it found the father’s consent was not required. In Pender, the father apparently paid $615 in support for three children over a period of approximately two and one-half years. During most of this time, either the paternal grandparents or Social Services, vis a vis, the adopting parents, the McKees, had custody of the father’s child. The father asserted his failure to pay support was j ustified because no one had asked him to pay anything, nor had any court ordered him to make payments. The father had visited his daughter regularly, and while she was at his parent’s home, he bought food and milk for her. The court held the father was not relieved of his obligation to support his child because someone else had custody of her. It concluded a parent must furnish the support and maintenance himself, and the duty is a personal one. But see Loveless v. May, supra (mother’s failure to provide support was found justified because she was not advised or ordered to contribute to her child’s support, and the appellants, seeking adoption, had gained custody of the child by juvenile court order).
Relying heavily on Pender, the courts in Watkins v. Dudgeon, supra, and Henson v. Money, supra, held the respective fathers’ consents were not required. Henson is worthy of discussion. There the father supported his son for nine years but withheld child support for a fifty-one week period because of a dispute with his former wife and her new husband over visitation rights. The Supreme Court held the father was not justified in withholding the support, stating he could have petitioned the court to compel his ex-wife to abide by the terms of their divorce decree concerning visitation privileges with his child. But see Harper v. McCaskin (wherein father never petitioned the court to enforce visitation rights when ex-wife prevented him from seeing child, yet court held father’s failure to contact child justifiable and not a sufficient ground to dispense with his consent).
The foregoing cases reflect inconsistent applications of known principles, which in turn pose real problems in deciding any adoption case involving a consent issue under § 56-207 (a) (2). From my review of the cases, I come to this conclusion: One should rely heavily on the language contained in Harper when arguing that the non-custodial parent’s consent should be required; but when one is contending the parent’s consent is unnecessary, cite liberally the principles contained in Pender.
In the present case, the majority fails to cite Pender at all and borrows little from Harper. It does rely on a case cited in Pender for the rule that a father’s duty to support his minor child cannot be excused on the basis of the conduct of others, unless that conduct prevents him from performing his duty. Green v. Green, 232 Ark. 868 , 341 S.W.2d 41 (1960). Green was a case in which a father was found errant in failing to make monthly payments to his son’s education fund as directed by the court’s decree. The Supreme Court dismissed the father’s argument that his former wife moved to another State and prevented him from visiting his son; it ordered the father to continue the monthly payments and directed that all arrearages be reduced to judgment. Whether the holding or rule in Green is applicable to adoption proceedings is most dubious in my opinion. After all, in most adoption cases, a court terminates a parent’s rights to his child; few consequences of judicial action are so grave as the severance of natural family ties. See Santosky v. Kramer, 455 U.S. 745 (1982). Even assuming the rule in Green is applicable in adoption cases, we are met with a different burden of proof — a preponderance of the evidence is employed when imposing support obligations while clear and convincing evidence is required to terminate a parent’s rights to his or her child. Here, the majority court held that the father, Terry Dodson, was unjustified in withholding child support payments and in failing to communicate with his child, concluding the mother’s conduct did not prevent him from performing his duties. Under the circumstances of this case, the court, at most, (in a proper action) should enforce and reduce to judgment any arrearages in support Terry Dodson has accrued; it should not, however, permit the law to take this father’s child away. A fair review of the facts clearly shows the mother made no effort to comply with the visitation provisions contained in the parties’ divorce decree. The undisputed evidence also reveals that of the twenty months the father did not support or communicate with his child, the mother had informed him of her whereabouts just one time, viz., when she first moved to Kansas City, Missouri, where she resided for only six months.
A more detailed account of the sequence of events is necessary. Terry Dodson met all of his fatherly duties from the time his daughter was born on January 19, 1979, until January IS, 1981, or two months after her mother, Debra Donaldson, married Melvin Donaldson and moved to Kansas City. Until this time, Terry visited his daughter as often as her mother would permit, even though the parties’ divorce decree directed he was entitled to visit every Saturday.
The Donaldsons moved to Kansas City in November, 1980; Debra admitted she never attempted to communicate with Terry after January 31, 1981. She made no efforts to obtain child support from Terry, nor did she make the parties’ daughter available for visitation, as ordered by their divorce decree. Curiously, Debra’s parents’ address was on the records of the court clerk, whose duty it was to receive support payments. Thus, even though Debra moved at least three times during the twenty-month period involved here, only her parents knew where she lived — with the possible exception that Terry might have known of her move to Kansas City in November, 1980. However, accepting the fact he knew Debra resided in Kansas City, she lived there only six months. She candidly admitted that she never told Terry of her subsequent moves to Mountainburg in April, 1981, and to Fort Smith in February, 1982. Terry resided in Fort Smith throughout this entire ordeal.
The trial court (and this Court’s majority) placed much emphasis on the fact that Terry failed to contact Debra’s parents to discover her whereabouts. To require a divorced parent to contact his or her former mother- or father-in-law to locate his former wife or husband is pure folly. The folly is even greater in the situation here considering that on one occasion, Terry did go to the home of his former in-laws, but they refused to talk to him about where she lived. Their excuse for not telling Terry where Debra lived was that it was too early in the morning, viz., 6:30 A.M., when he requested this information. Of course, they could have given him the address in as much time as it took them to tell him to leave. At least, it would seem, they could have called him later and made arrangements which accommodated their schedule. On another occasion, according to Terry, these same maternal grandparents said that they did not want to be involved in his and Debra’s business. Furthermore, the evidence reflects that pending Terry’s and Debra’s divorce, Terry was threatened with arrest by his in-laws when he went to their home to exercise his visitation rights with his daughter. Surely, in view of these circumstances, no one could reasonably expect Terry to seek information from such a hostile source. Neither do I agree that Terry was required to file an action to enforce his visitation rights, especially in view of Debra’s admission that she did not tell him when she moved to Mountainburg and Fort Smith. Certainly, the court in Harper v. Caskin did not require such legal action.
The majority’s result imposes a greater duty upon the father in this case than the mother, who has an equal and correlative legal duty to discharge. Terry was directed by the court to pay child support — which he did until two months after Debra moved to Kansas City. Debra, on the other hand, was to afford Terry visitation with their child every Saturday — which she failed to do from the time she left the State in November, 1980, until this matter was tried in September, 1982. Yet, the majority would require Terry to pay child support to his former in-laws who, in turn, would forward it wherever Debra might live at the time, albeit unknown to Terry. At the same time, the majority requires no action by Debra to provide Terry with the opportunity to visit his daughter. The facts of this case do not warrant a court’s order to dispense with this father’s consent and to terminate his legal — not to mention his emotional — ties with his daughter.
Section 56-207 (a) (2) affords a less stringent standard for dispensing with consent than that required under prior law on adoptions. As a consequence, more adoption cases are now being filed involving children of divorced parents. Warring divorced parents commonly feud over support and visitation issues, and because of § 56-207 (a) (2), we are seeing their disputes in probate court in the form of adoption proceedings. The Arkansas General Assembly should review our 1977 Adoption Act and either repeal or modify the language contained in § 56-207 (a) (2). I do not believe the members of the General Assembly envisioned terminating parental rights in situations such as those presented in Henson v. Money or in the case at bar. 1
I would reverse.
Cf. A. B. v. Arkansas Social Services, 273 Ark. 261 , 620 S.W.2d 271 (1981), in which Social Services, proceeding under Ark. Stat. Ann. § 56-128 (Supp. 1980), attempted to terminate a “putative” father’s parental rights; even though he was a felon serving time in the penitentiary and had never supported his child, the Supreme Court refused to sever his parental rights because the State failed in its proof to show the requirements under § 56-128, If the State had proceeded under the 1977 Adoption Act, ivz., § 56-220, the result most likely would have been different. In fact, consent, notice and an opportunity to be heard is not provided for a putative father under §§ 56-206 (a) (2) and 56-207 (a) (3) of the Adoption Code.